Relator's first contention is that his plea was involuntary. In order for a guilty plea to be valid it must have been made voluntarily, Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962); Waley v. Johnston, 316 U.S. 101, 62 S. Ct. 964, 86 L. Ed. 1302 (1942), as well as knowingly and intelligently, Brookhart v. Janis, 384 U.S. 1, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966); United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3rd Cir. 1968). The state court record in the instant case is devoid of any inquiry by the court that the plea was entered voluntarily and knowingly. In Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), the Supreme Court established a prophylactic per se rule which would invalidate such a plea. However, this Circuit has held that Boykin is not to be applied retroactively. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3rd Cir. 1969); United States ex rel. Bresnock v. Rundle, 300 F. Supp. 264 (E.D. Pa. 1969). Moreover, in the recent case of United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3rd Cir. filed July 17, 1970), this Circuit, sitting en banc, has determined that where the relator is represented by counsel, the burden of proof for invalidating a guilty plea is on the relator.
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See also, United States ex rel. Kidd v. Commonwealth of Pennsylvania, 320 F. Supp. 1201 (E.D. Pa. filed October 1, 1970). Since in the instant case relator was ably represented by counsel, the burden of showing that the guilty plea was unlawful falls on relator.

The mere fact that the guilty plea was in part motivated by the fear of a possible death sentence does not, in itself, vitiate an otherwise lawful guilty plea. See Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). Rather, the lawfulness of the plea must be determined by considering all of the relevant circumstances which surrounded the plea in question. United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3rd Cir. 1968).

Relator, who at the time of the incident was twenty-one years old and had a fifth grade education, was arrested on March 5, 1950, only a few short hours after the altercation with the victim Ernest Bosley. Later that same day he signed a confession. The stabbing took place at a party in the presence of approximately twelve to fifteen persons. These people witnessed a fight between relator and the deceased, saw relator enter the kitchen and after the lapse of three or four minutes return to the living room where he stabbed the victim. Relator was represented by Jack B. Horner, Esq. and David F. Chambers, Jr., Esq., who were appointed by the Court on March 22, 1950. The notes of testimony of the Post Conviction hearing make it clear that counsel were fully familiar with the facts of the case as well as the applicable law. Counsel conferred with the relator at least five times prior to the change of plea (N.T. 11) and explained the law and alternatives that were available to relator. Relator asserts that counsel advised him to plead guilty. While this may well be the case, it is clear that counsel left the final decision up to relator, and, in fact, were actively preparing for a trial on the merits until the change of plea. In light of the attendant circumstances, not the least of which was the many eyewitnesses, counsel's advice appears perfectly proper. Moreover, the Court finds that counsel were acting properly in advising their client the extent to which the District Attorney was going to prosecute. Clearly this was relevant to an intelligent determination by relator of whether to plead guilty. Furthermore, the District Attorney clearly had a sufficient basis for seeking the death penalty. The Court is not confronted with a situation where the prosecuting attorney threatened to prosecute on a charge which was not justified by the evidence in order to induce relator to plead guilty. The Court finds that the relator, faced with the case which the state was prepared to prove, coupled with the information that the district attorney would seek the death sentence, and the fact that another defendant had recently received the death sentence, decided that it would be in his best interest to plead guilty. We find this plea to have been made voluntarily.

And now to wit, this 13th day of October, A.D. 1970, it is ordered that relator's petition for a writ of habeas corpus be and the same is hereby denied.

There is no probable cause for appeal.

And it is so ordered.

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